Wednesday, November 19, 2008

Victory in New Hampshire: No More Data-Mining

Yesterday, in a historic victory for physicians and patients, the First Circuit Court of Appeals unanimously upheld New Hampshire’s Prescription Confidentiality Act, which prohibits drug reps from using prescription information for pharmaceutical detailing.

This is a huge victory. While both Maine and Vermont have passed anti-data mining laws, industry-funded lawyers have challenged the laws on the basis that they violate the First Amendment protections on free speech. In fact, these same lawyers were able to convince a district court to strike down the New Hampshire law in April 2007, and since then, according to this article by the Associated Press, many other states have frozen their efforts to regulate this sleazy marketing practice while they wait to see how courts rule.

Now, they have their answer. Yesterday’s decision marks the first time a federal court has upheld such laws. According toSean Flynn, a law professor who has spearheaded efforts to ban data-mining, the federal court "refused to apply the First Amendment to the trading of prescription records for marketing purposes where ‘information itself has become a commodity.’ The court explained that applying the First Amendment to such trade in prescription data 'stretches the fabric of the First Amendment beyond any rational measure.’”

You can almost hear the great clicking sound of dominos falling as the 18 other states considering anti-data mining laws get back to work on them.

Click here for an excellent fact sheet on prescription data-mining, courtesy of the Prescription Project. I have covered this issue from various perspectives here.

Let's hope that drug companies will use the millions they were spending on data-mining for something more useful to society--like research and development.

2 comments:

I hate to sound pessimistic but I trust drug companies about as much as I trust my ex-husband on the ice cream aisle. I wouldn't put it past them to spend money to prevent research on the diseases they sell drugs for.

I admit to having mixed feelings about this "victory." In fact, I've always found it very useful to have pharmaceutical representatives aware of my prescribing information. Why?

If we look at medical practice as a pure business in which we market and sell medical services, it is invaluable to understand how we compare and contrast to our competitors (other physicians). Now obviously, medical practice can't be easily equated to selling cars, but some of the same business aspects certainly apply.

When reps came in, rich with information about my competitors because they know exactly how and what other physicians in my vicinity prescribe, I always found this to be of particular interest. I could tell the precise focus and method of treatment applied by each area physician, and know exactly how that compared to my own approach. Sometimes this led to my reassessing my own approach, while other times it led to my questioning the approach used by a colleague.

You might say, however, that the pharmaceutical reps had strict instructions not to share this information with physicians. Yes, I'm aware they did have such instructions, but they have always been universally ignored. There were very few reps with whom we weren't able to review all the local prescribing practices from time to time.

So, yes, you can call the NH legislation a victory, and it probably is on a broad scale, but from a solo physician perspective, I've always seen this as a free marketing tool. It will be an unfortunate loss.

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I am a psychiatrist in Newburyport, Massachusetts and an Associate Clinical Professor of Psychiatry at Tufts Medical School (but note that the opinions expressed in this blog are not those of Tufts). I graduated from the psychiatric residency at Massachusetts General Hospital in 1995, and am the founder and publisher of three CME newsletters, including The Carlat Psychiatry Report. In March 2012, I left the publishing world to work on conflict of interest issues for The Pew Charitable Trusts, as director of the Pew Prescription Project. I returned to Newburyport and Carlat Publishing in September 2014.